The Lynne Stewart Trial

David Cole | February 17, 2005

On February 10, a jury in New York City convicted longtime activist attorney Lynne Stewart and two others on all counts in one of the Bush Administration's most heralded terrorism trials since 9/11. Stewart, a 65-year-old who has never committed a violent act, now faces twenty to thirty years in prison. Do you feel safer?

Perhaps more than any other, this case illustrates how out of hand things have gotten in the "war on terrorism." To inflate its successes in ferreting out terrorism, the Justice Department turned an administrative infraction into a terrorism conviction that, unless reversed, will likely send Stewart to prison for the rest of her life. To make sure the charges would stick, the prosecution tried the case in the most inflammatory and prejudicial way possible, introducing as "background" reams of evidence of terrorism that had nothing to do with Stewart's actions.

The case against Stewart was fairly straightforward. She represented Sheik Omar Abdel Rahman, now serving multiple life sentences for conspiring to blow up several Manhattan bridges and tunnels. Rahman is barred from any contact with the outside world beyond his immediate family and attorneys. As his lawyer, Stewart signed an agreement not to transmit messages from him to unauthorized people. In June 2000 she violated that agreement. After meeting with the sheik, Stewart called Reuters to say that he had withdrawn his personal support for a cease-fire then in place in Egypt. Two days later she issued a clarification explaining that the sheik "did not cancel the cease-fire," but "left the matter to my brothers to examine it and study it because they are the ones who live there and they know the circumstances better than I."

Stewart should not have issued the release. Doing so violated the administrative agreement. But it is not a crime to violate such an agreement. In an ordinary case, the lawyer might receive a warning. In an unusual case, the lawyer might be barred from continuing to visit her client (as indeed Stewart was at the time, until she agreed to a new set of conditions). In an extraordinary case, the lawyer might be brought up on disciplinary charges before the bar.

But after September 11, the Justice Department was not content with any of those measures; it charged Stewart with terrorism. Since violating the agreement was not itself a crime, the indictment charged her with fraudulently entering into the agreement in the first place. And it alleged that by passing on the sheik's message, she'd offered "material support" in aid of terrorist activity.

Both charges were a stretch. Showing that Stewart violated the agreement would be easy, but proving that she intended to violate it when she initially signed it was much more challenging. And the terrorism charge would require showing that Stewart's statement to the press was intended to support a particular terrorist act, when in fact the release did not call for or prompt any such act.

So how did the prosecution meet its burden? With classic McCarthy-era tactics: fearmongering and guilt by association. First, it tried Stewart together with Ahmed Sattar, an Egyptian-born US citizen against whom it had thousands of hours of wiretaps of communications with a terrorist group. Among other things, Sattar had issued a fake fatwa urging followers to "kill [Jews] wherever they are." By trying Stewart and Sattar together, the government could taint Stewart with Sattar's sins, even though, as was the case with the fatwa, she had nothing to do with them and no knowledge of them. In his closing, the prosecutor repeated Sattar's "kill the Jews" fatwa more than seventy times.

Second, the prosecution sought to inflame the jury by introducing evidence that had nothing to do with Stewart's actions. Shortly before the anniversary of 9/11, it played a tape of Osama bin Laden expressing support for the sheik. It introduced evidence of Al Qaeda's bombing of the USS Cole, even though there was no claim that Stewart or her co-defendants had anything to do with Al Qaeda, and of a massacre in Egypt in which fifty-eight tourists were killed, even though the massacre long pre-dated the actions of Stewart and her co-defendants. The prosecution offered this evidence as "background," not proof of Stewart's culpability, but it is hard to believe that such a distinction could be maintained by a jury sitting less than a mile from Ground Zero.

Let me be clear: I think Stewart crossed the line from zealous advocacy to wrongful conduct. But she is no terrorist. At most she deserves a disciplinary proceeding before the bar. Sending her to prison will provide another statistic in the Justice Department's desperate effort to show results in the "war on terrorism," but it will not make us any safer. One of the defining evils of terrorism is that it uses human beings' lives to send a political message. Has the Justice Department done any differently here?